Offshore processing: has the bar been lifted?

THE HIGH COURT recently handed down a judgment that may have significant implications for offshore processing of asylum seekers, a key policy of both Labor and the Coalition.

In the case – Plaintiff M61/2010E v Commonwealth of Australia (Plaintiff M61) – the High Court ruled, in a 7–0 joint judgment, that asylum seekers detained on Christmas Island were entitled to the protections of the Migration Act. Accordingly, the Commonwealth was obliged to afford asylum seekers a minimum of procedural fairness when assessing their claims.

The plaintiffs in the case, Plaintiffs M61 and M69 (the Migration Act prohibits federal courts from publishing the names of most asylum seekers), were citizens of Sri Lanka. They entered Australian territory at Christmas Island, and were detained. Christmas Island is designated by the Migration Act as an “excised offshore place,” meaning that ordinarily people who enter Australia there cannot validly apply for a protection visa. The Migration Act provided an exception to this ordinary rule: if the Minister for Immigration considered it was in the public interest, the Minister could “lift the bar” and allow a particular person to apply for a protection visa if he or she considered it was in the public interest.

While the plaintiffs in Plaintiff M61 were detained, they were subject to what was called a Refugee Status Assessment (RSA) by officers of the Department of Immigration & Citizenship. This assessment concluded that the plaintiffs were not persons to whom Australia owed protection obligations under the Refugee Convention. The plaintiffs sought a review of their RSA’s pursuant to an Independent Merits Review (IMR), a review undertaken by independent contractors. The IMRs reached the same conclusion as the RSAs.

As important as what the case decided was what the case did not decide. Plaintiff M61 did not decide that the scheme of offshore processing was unconstitutional – the High Court specifically rejected an argument about the validity of the key provision of the offshore processing scheme, which allowed the Minister for Immigration to “lift the bar” but imposed no obligation on him to consider whether to do so.

Neither did Plaintiff M61 hold that the government was always obliged to afford asylum seekers a robust degree of procedural fairness. The decision hinged on an implication of procedural fairness read by the High Court into the Migration Act. Going forward, in accordance with general principles, that implication is presumably readily amenable to modification by Parliament.

What then did the case decide?

There were broadly three issues in the case:
• in processing the plaintiffs’ claims, was the Commonwealth’s power subject to limitations;
• if so, did the Commonwealth exceed those limitations; and
• if so, were the plaintiffs entitled to a remedy?

The first of these was the critical issue: in detaining the plaintiffs and inquiring into whether the Commonwealth owed them protection obligations, was the Commonwealth still subject to the Migration Act, so that the plaintiffs were entitled to the basics of procedural fairness? This issue, in turn, depended on the basis of the lawfulness of the plaintiffs’ detention.

Both the plaintiffs and the Commonwealth agreed that the detention of the plaintiffs was lawful, but their reasoning as to why that detention was lawful was critical to the High Court’s decision.

The plaintiffs argued that their detention was lawful only because the Commonwealth was taking steps under, and for the purposes of, the Migration Act to determine whether the plaintiffs had valid claims as refugees.

The Commonwealth argued that the detention was lawful, not as an exercise of power under the Migration Act, but because the Commonwealth was making inquiries which might lead to an exercise of powers under the Migration Act.

On this critical issue, the High Court agreed with the plaintiffs. There were two elements to the High Court’s reasoning.

First, the Court was reluctant to adopt the position advocated by the Commonwealth. It would allow the continued detention of the plaintiffs at the unconstrained discretion of the Executive. That is, it would amount to an awesome power to hold that the Commonwealth could lawfully detain a person merely because it is making inquiries which might (at some point) lead to an exercise of statutory power.

Second, the High Court said, the reason why the plaintiffs were subject to RSAs and IMRs, and the reason why the whole scheme of RSAs and IMRs existed, was so that the minister could consider whether to exercise his or her power under the Migration Act to “lift the bar.” The RSAs and IMRs occurred because of a ministerial decision to consider whether to exercise his statutory power, and they were made for the purposes of informing the Minister as to issues that were relevant to whether to exercise that statutory power. This, the High Court said, was enough to bring the conduct of those inquiries under the umbrella of the Migration Act, and to mean that those inquiries needed to be conducted in a way that was procedurally fair.

Having decided that the Courts could police the Commonwealth’s processing of the asylum seekers detained on Christmas Island, the Court identified a range of errors in the conduct of the plaintiffs’ IMRs. These errors included that the reviewers had stated, in forming their views, that they were not bound by Australian law – in effect, they said, laws of Parliament and High Court decisions were relevant, but not determinative. The High Court disagreed.

The High Court then tackled the question of the appropriate remedy. In the circumstances, the answer was not simple. The normal administrative law remedies of certiorari (an order quashing a decision) and mandamus (ordinarily, to compel the remaking of the decision according to law) were not available because of the way the statutory scheme was constructed. These ordinary remedies were unavailable because all the plaintiffs had shown was that there had been error in a process that was antecedent to the Minister considering whether to exercise a power that the Minister was under no obligation to exercise. Therefore, since no decision had been made, there was none the Court could order quashed; nor could it order the Minister to consider whether to lift the bar, since the Migration Act expressly said that the Minister had no obligation to consider whether to do so.

With the standard administrative law artillery gone, all that was left to the plaintiffs was the remedy of “declaration” – in effect, an order declaring that the Commonwealth had made an error of law and had failed to observe the requirements of procedural fairness. As the High Court observed, the utility of a declaration in these terms should not be underestimated in circumstances like the processing of asylum seekers where the Commonwealth has indicated it considers it important to perform its obligations under the Refugee Convention.

What then is the legal and policy significance of Plaintiff M61? There will be much debate about how it affects the proposed “East Timor solution.” There will also be debate about whether the Commonwealth could amend either the Migration Act or the details of the processing system to avoid the outcome in Plaintiff M61. The prospects of efforts in this direction will, as always, need to be worked out on a case-by-case basis. Technically, the decision is limited to the specifics of the existing processing system and provisions of the Migration Act. It is not obvious that the High Court would have reached the same conclusion, for example, had there been a weaker causal connection between the IMRs and the Minister’s consideration of whether to lift the bar.

As a guide to the future, what may be more important than the decision itself is the attitude evinced by the judges of Australia’s highest Court.

First, the reasoning again confirms that the High Court will protect its turf when it comes to legislative attempts to insulate the Executive from judicial review, or legislative attempts to empower the Executive to act other than in accordance with the law declared by the Australian judiciary.

Second, the reasoning displays a keen awareness by the High Court of the policy context within which the Migration Act operates. The High Court devoted several pages to explaining the recent history of migration law, and the events that resulted in the mass-processing of asylum seekers on Christmas Island. The High Court wove this context throughout the decision. The High Court intimated, for example, that the Commonwealth could not have it both ways with its messaging on refugees. It could not, on the one hand, hold out to Australians that it was being tough on asylum seekers (in the sense of affording them few legal protections) and, on the other hand, hold out to the world that it was complying with its international obligations with respect to the lawful processing of claims of asylum. The High Court made versions of this point at key points in the judgment – Australia’s commitment to its international obligations helped explain, for example, the critical causal connection between offshore processing of asylum seekers and the Minister’s consideration of whether to lift the bar.

This attitude, evinced by the full bench of the High Court speaking unanimously, may have ongoing legal and political significance. A second loss like Plaintiff M61 may, unhappily for the government, be perceived as going to its competence in this policy area of outsized public interest. •

David Hume is a visiting fellow at the University of NSW and a practising solicitor.